Spiros & Beverly Brendas v Craig Genter

The plaintiffs' evidence

1. Mr Spiros Brendas, the first plaintiff, gave evidence that he had conducted a business called Omega, which operated earthmoving equipment. He described a Brendas Family Trust which operated a number of corporations including Kenoss Pty Limited, of which he was a director. Mr Brendas was the controller of Kenoss and it owned a lot of earthmoving equipment. Included in that equipment was a Caterpillar 330B model excavator.
2. Mr Brendas gave evidence that Kenoss went into voluntary administration. At the time that occurred, the excavator was being used at a building site known as the Police Academy. When Kenoss went into administration, the administrator took the machine. Mr Brendas next saw the machine approximately six months later at the defendant's farm property at Royalla. On that occasion, Mr Brendas had gone to the property with his daughter, Tina, and a man named Chris from Grays. He also observed there another machine, being the 815 Caterpillar compactor.
3. Mr Brendas gave evidence of the following conversation that took place between him and the defendant: "Genter: Hello Spiros how are you? Brendas: Good, we are coming to get my machines. Genter: Any time you want. Brendas: Can I leave the machines here for a little while. Soon Caterpillar people come, check the machines and they'll take it. Genter: No problem Spiros."
4. Mr Brendas gave evidence that after a couple of weeks, he went back with the Caterpillar foreman, but only saw one machine on the property. The 330B excavator had disappeared. He rang Mr Genter later that day, and the following conversation took place: "Brendas: Where are my machines? Genter: It's not your machine anymore. The machine I'm working to a friend of mine. Brendas: How's the address. Genter: I don't want to give the address and I don't want you to come to my home again. I'll call the police."
5. A few months later, Mr Brendas saw the 330B excavator on another property in December 2016. He identified the machine as his, and saw the hammer and bucket, which were fittings used on the excavator. The machine was parked on the property.
6. Mr Brendas reported the matter to the police.
7. Mr Brendas gave evidence that three months before the trial he saw the machines outside the defendant's house, parked on the shoulder of the road. That was approximately one kilometre away from the place where he had previously seen them.
8. Mr Brendas gave evidence that before he got the machines back, he had work involving the hire of machines. One job was at Gungahlin, and he hired a machine for $80,000.00. Another machine cost him $100,000.00.
9. The four photographs taken by Mr Brendas became Ex A.
10. Mr Brendas gave evidence that he organised a float to collect the machines. The hammer and bucket were missing, so he went to the property where he had seen them and spoke to a Mr Knowles. He said he was looking for the hammer and bucket and a ripper, and Mr Knowles said: "I'll give you five minutes to be out of my property."
11. Mr Brendas then left the property, but before he did so, he saw "a big cutting excavation", more than 3 metres high. He gave evidence that the 330B excavator could have done that work.
12. Mr Brendas gave evidence that he required a mechanic, Peter Ronzano, to start the machine, the 330B excavator, before it could be taken away. He did not get the bucket or the hammer back.
13. In cross-examination, Mr Brendas agreed that he had ceased being a director of Omega Projects (ACT) Pty Limited on 14 August 2015. He was not a shareholder in that company. Kenoss had owned six or seven excavators at the time it went into administration. Of the five or six that were operable, one was five and half tonnes, the other one was 26 tonnes, another was 30 tonnes, and the 330B was between 33 and 35 tonnes. Mr Brendas agreed that the 330B excavator had a log book in which the hours of usage of the machine were recorded. However, he was unable to identify a log book as the relevant log book for the excavator.
14. The next witness called on behalf of the plaintiff was Ms Tina Majstorovic. She gave evidence that she worked for her father, Spiros Brendas, in the family company from 1986 to 2014. The business was an earthmoving and construction business, and she was involved in transactions of purchasing and leasing machinery, and dealing with financial institutions between 1996 and 2013. She gave evidence that Kenoss owned the majority of the earthmoving equipment, and she described the type of work the business carried out.
15. Ms Majstorovic gave evidence that the business hired machines out on a daily, weekly, monthly or specific period of time basis. The machines can be hired with a driver or without. Dry-hire was a rate that did not include the cost of a driver and fuel. Kenoss went into liquidation and the machines were picked up by receivers and taken to different locations.
16. Ms Majstorovic went with her father and Mr Chris Hawkes from Grays, to the defendant's property at Royalla. She could not remember the date. She saw there the 330B excavator on the defendant's property at Royalla. She also saw there a compactor and attachments for the machinery. She gave evidence that the following conversation took place between her and Mr Genter: "Witness: How did the machines get here? Genter: My son is friends with Ahmad the tow-truck driver and he asked if he could store them here. They have not been any problem being here because I have land. Witness: Can we please leave them here until we get a mechanic to look at them? Genter: Yes that is fine. Do not damage my driveway when you take the machines out. Witness: We won't damage your driveway when we take the machine out."
17. Ms Majstorovic then took a photo of Mr Genter's business card and said that she would call him when they could get a mechanic to come to the property.
18. Ms Majstorovic gave evidence that she did call the defendant on 5 March 2015. Ms Majstorovic had kept notes of that telephone call, which she had, on the same day, typed up. The record of that telephone conversation became Ex G, and includes the following: "Witness: I'm trying to find one of our machines. We understand it has been moved from your property. Can you please tell me where it is? Genter: I don't know where it is. Witness: What do you mean? Genter: A friend of mine has it, but I don't know the address. I tried to tell Spiros today that I don't know the actual address, but I know where it is. He just started fucking yelling and carrying on. Witness: Right. So how do I find out the address. Genter: My solicitor said Spiros can't have the machine. He's in liquidation. It's not his machine. Witness: Really. You called a solicitor! OMG, your solicitor has got it wrong. What made you call a solicitor? Genter: Well Spiros rang me up and was yelling and swearing at me and said 'Where's my fucking machine?', so I called my solicitor and he investigated and called the liquidator and said 'It's not Spiros' machine and don't give it to him. He has no authority to the machine. Witness: Don't you remember the guy From Grays auction? He was handing the machine over to Spiros. I feel sorry you don't understand and you wouldn't, as you are not close to the situation, but I can tell you the machines belong to Spiros. Genter: Yeah, well unless my solicitor says so, I don't believe it. Witness: Oh, your solicitor. What would he know about the Kenoss situation? Genter: He called the liquidator who said Spiros can't have the machines back and not to give it to him. Witness: So what makes you think that you can just hire out the machine that doesn't belong to you. Genter: It's on my property and my friend said he needed one. I was trying to find a bucket for it too. Witness: Who is your friend? Genter: Paul. I've been trying to call him but he's not returning my call. I think he's gone down the coast. Witness: What's his surname? Genter: I don't remember. You wouldn't be able to find him without his phone number anyway. Witness: I didn't ask you for his phone number. Genter: Yeah well I didn't appreciate Spiros just fucking turning up to my house. He was supposed to call me when he wanted to come and move it. Witness: Yeah we did say that, however, we had no intention of moving the machine today. Spiros brought a mechanic from Caterpillar to inspect the machines as it was presumed that the machines wouldn't have been looked after or moved since they were delivered by Ahmad. Now we have an issue as we don't know what damage has been done by you and Paul now. Genter: The machine is exactly the same as when it was brought here. Witness: How did you start the machine? Genter: Dunno, just started. Witness: The machine should not have started if it had not been moved for over a year. We now have a problem as it could have been damaged. Genter: Well it's not. Witness: Have you hired it out before? Genter: No this is the first time. Witness: Why did you think you had the authority to hire out the machine when you don't own it? Genter: You didn't come back. You said it would only be a week and my friend needed it. Witness: We said we'd be back soon and you said it was okay as it had been a long time anyway. You had our contact details, why didn't you call us if you wanted it moved. Genter: No, you took my number; I didn't have your number. Witness: There are a number of ways you could have found a way to call us. Genter: Yeah well I didn't like the way Spiros turned up to my house and then rang and abused me. So I rang my solicitor. Witness: Do you blame Spiros! You told us the machine would be safe and I thanked you for accommodating the machines for that length of time. We never expected you to hire out the machine. You would be angry too if someone hired out a machine that belonged to you without your permission. Genter: Yeah that's why I called my solicitor to check. Witness: Who is your solicitor? Genter: Ben Allick, he's my friend. He's a solicitor. Witness: Could you please call your friend Paul and ask him for the address of the property so we can collect the machine. We want the machine back. Genter: Yeah well he's not answering. Witness: Can you please call me in the morning and let me know? Genter: I have to speak to my solicitor, he will have to call you. Witness; So, Ben Allick will call me in the morning? Genter: Yes, he will tell me if I can give you the machine. Witness: Spiros just wants his machines back. Can you please ask your solicitor to call me in the morning?"
19. Ms Majstorovic gave evidence that the dry-hire rate in 2013 for the 330B excavator was $120 an hour without fuel. The dry-hire rate for the compactor was $150 per hour.
20. In cross-examination, Ms Majstorovic gave evidence that on the day she visited the defendant's property with her father and Mr Hawkes, and her brother, she saw a bucket and a hammer. The excavator she saw there was coloured yellow. It was put to her than when she spoke to the defendant on the telephone, he did not say that he had hired out the machine, which she denied. When it was put to her that she had said to him, "what makes you think that you can just hire out the machine?", and that he never said that he had hired out the machine, she answered: "A: Yes. That's the impression he gave me. He lent it to his friend."
21. It was put to the Ms Majstorovic that the defendant had not said to her that he hired the machine to Paul, to which she replied: "A: I'd have to re-read my notes." Those notes comprised Ex G.
22. Mr Ian Scensor gave evidence that he lived at Royalla, New South Wales, and that the defendant had carried out work at his home, including earthworks and installing a pool. There had been problems with the pool installation which involved broken pipes. The defendant had fixed the pool initially, but later offered to take the pool out and re-level it. He did that by using an excavator that had straps attached to it which were placed around the pool before it was lifted out. When asked to describe the excavator, he said it was "a very large yellow excavator". The defendant also used the excavator to carry out earthworks around the property and to clean up some rocks. The defendant had charged $200 an hour for hire of the excavator, and $100 an hour for hire of a bobcat. The excavator remained on his property for "a few months", but he did not see it leave. There was no cross-examination.
23. Mr Peter Ronzano gave evidence that he was a truck and diesel mechanic, operating a business known as Multi Truck Repairs in the ACT. Prior to that, he had been employed by Kenoss as a diesel mechanic, servicing trucks and machinery. In December 2016, he went to Royalla to jump-start a 330B Caterpillar excavator. The machine would not start because the batteries were too small, and were flat. He then carried out repairs to the machine, which included repairing the fan, fixing some oil leaks, an air-conditioning compressor, and repairs to the quickege. He sent an invoice to Omega Projects for the cost of the repairs. The invoice became Ex B.
24. In cross-examination, Mr Ronzano said that he did not check whether the 330B Caterpillar machine had a log book.
25. In further evidence in chief, by leave, Mr Ronzano stated that the service intervals for the machines was determined by hours. A photo taken of the hour metre on the machine at the time it was serviced, showing 14,109 hours, was tendered without objection as Ex C.
26. Dimitri Brendas gave evidence that he worked for Kenoss as a systems manager before it went into administration in 2013. He was appointed by the administrators to "keep an eye on the equipment". The administrators were Nathan Landry and Nicholas Warden. He gave evidence that he had to provide them with information as to where the machinery was, what it was doing, and how it was being maintained. Kenoss was the owner of the 330B excavator which was, at the time, at the police depot. He took Grays' representatives to that site, where they took photos. The machinery was to be auctioned in August 2014, however, the auction did not occur. A photograph of the 330B excavator was downloaded from the Grays auction website and became Ex D.
27. Mr Dimitri Brendas attended the farm with his father and sister and a representative from Grays, where he saw the 330B excavator. There was no cross-examination.
28. The plaintiff called Mr Paul Knowles, who gave evidence that he lived at a property at Royalla. He owned Custom Fencing, which was a fencing business, and knew the defendant, for whom he had done some work over the years. He identified the photographs Ex A, which were taken of the machinery on his property. When asked how the machinery got there, he gave evidence that he assumed "on a truck". He had no idea when it arrived, and no idea of how long it was there for. He purchased the property five and a half or six years ago, and had "done lots of work there since he bought it". The defendant had done excavation work on his property. He gave this evidence: "Q: Do you know what he used? A: Well I'm assuming his excavators and bobcats. Q: Did you see him do it? A: No, no. As I said, I leave for work. I just ring him and say, 'I want this done', and he'll pop up on weekend or something and I'll show him where I want it done, then he just comes and does it. Q: Did he bill you for the work he did? A: Yes, he did. Yeah. Q: Did you ever see him using a machine at your place? A: No. Q: Never? A: No."
29. Mr Knowles identified the bucket and hammer shown on his property in the photos Ex A. He was asked: "Q: Did you know where they are now? A: No. I have no idea."
30. Mr Knowles gave evidence that he remembered speaking to a Sergeant Nicholson, but did not recall him making notes of their conversation. When asked for how long the excavator was at his place, he said: "Twelve months, may be, all up, a bit longer. Offhand, I couldn't tell you."
31. The solicitor for the plaintiff was given leave to ask a leading question in respect of the time the excavator was on Mr Knowles' property. He agreed that he had told Sergeant Nicholson that the machine had been on his property for a period of about three months from February 2016. His evidence was that the machine came once and then left for two to three months, and then came back.
32. Mr Knowles identified work carried out on his property by the defendant and was asked: "Q: And did Craig use that excavator for that work? A: I'm assuming he would have, yes."
33. The five photographs were tendered as Ex E. A further series of aerial photographs were admitted as Ex F. In cross-examination, Mr Knowles gave evidence that he also had an excavator and a bobcat on his property and carried out work with those machines. He was asked, in respect of the cutting work shown in the photographs: "Q: What other machines have you seen on your property whilst this work was being done? When I say 'this work', I mean this cutting work. A: Well I didn't actually see the machines being used. Q: No, but you saw other machines there? A: Yes, I did - yep. Q: What were they? A: There was the photos I was shown before of the big yellow machine, the big yellow excavator. Then Craig had his own bobcats and excavators as well and they've been at my house as well. Q: How many excavators have you seen other than this big yellow one that was there? A: At least two other different ones of Craig's, and his bobcat."
34. In re-examination Mr Knowles gave evidence that the defendant had blue Kobalco excavators to do pool and earthworks. When asked what size those machines were, he said: "A: He's got little ones, average size ones - I think 6 tonner - I think his biggest one's around the 6 tonner off looking at it. Q: And do you know what the size of that yellow one was? A: No - it's got 32 written on the side of it or something, I think."

Determination - have the plaintiffs proved title to the machine?

1. As set out above, the plaintiffs, in the 2ASOC, pleaded that on 2 February 2015 the plaintiffs and the receivers entered into an agreement whereby certain surplus assets of Kenoss, including the machines, were transferred to the plaintiffs. The plaintiffs further pleaded, by way of subrogation, that they had the right to immediate possession of machines.
2. The defendant's first and principal submission, at the conclusion of the hearing, was that the plaintiff's had failed to prove that title in the machines had ever moved from Kenoss to them. Nor was there any evidence of the right of subrogation asserted by the plaintiff. Therefore, on the evidence adduced by the plaintiffs at the hearing, the plaintiffs' claim must fail
3. In a written outline of submissions prepared prior to the hearing, entitled "A. Factual Elements and Submissions on Damages", counsel for the plaintiff submitted, after referring to interpleader proceedings that had taken place: "6 The defendant now accepts the title to, and the property in, the plant vests in the plaintiffs. What appears now to be in dispute is who is to bear the costs of this action and the quantum of damages (if any) payable to the plaintiffs by the defendant. The defendant's attitude seem to be that he denies any liability for damages or causing loss to the plaintiffs. It can fairly be said that, as at 15 December 2016, certain of the plant had been restored to the plaintiffs."
4. That submission misapprehended the defence filed to the 2ASOC by the defendant, and misstated the defendant's position. It may explain why the plaintiffs failed to adduce evidence of the agreement alleged to have taken place between them and the receivers on 2 February 2015.
5. When confronted with the defendant's submissions, counsel for the plaintiffs submitted: "Mr and Mrs Brendas were claimants in the interpleader and as a direct consequence of that interpleader, the goods were "released to them". The presumption, which must arise from that release and, the fact, that they were the only claimants is that they were and are to be treated as throughout, the owners. Where I have referred, in the written submissions, to the circumstances of the subrogation, lest I will not repeat that. As a matter of law, in our respectful submission, there was no evidence of any other large yellow machine, as it were, owned by Mr Genter; there is no suggestion that he owned such a machine, and there is abundance evidence that, he retained that yellow machine and that, in doing work on Mr Scensor's property, there was this large yellow machine."
6. This matter was case managed in the Queanbeyan and Sydney Registries of the Court. Following directions made on 13 March 2016, interpleader proceeding were commenced. I made further directions on 25 May 2016. On 1 July 2016, a consent order was made that the Rural Bank Limited was joined as a second defendant to the proceedings pursuant to Pt 6 r 24 of the Uniform Civil Procedure Rules 2005 ("UCPR"). Further directions were made, including: "2 I direct Rural Bank Limited to file its defence and any evidence upon which it wishes to rely, following the determination of the SC proceedings, in Rural Bank Limited v Kenoss Pty Limited (in liq) as first defendant, and Mr and Mrs Brendas as second and third defendants, to be heard by Justice Lindsay in SC on 4 October 2016."
7. An application by the plaintiff by Notice of Motion filed on 4 April 2017 for default judgment, or alternatively, to strike out the defence, was dismissed by Judge Wilson in this court on 5 May 2017.
8. In their written outline of submissions, in the context of the interpleader proceedings that had taken place, the plaintiffs submitted as follows: "4 As at 12 December 2016, no party applied to be joined and it is appropriate to say at this juncture that the plaintiffs claimed ownership of the plant by right of subrogation arising from each of them being guarantors of the loan made by Bank West, now known as the Commonwealth Bank of Australia. The particular loan from question was made to Kenoss Pty Limited ("Kenoss"), a company to which receivers were appointed and which is now in liquidation. The bank claimed the plant as part of its security for making the loan to Kenoss. All money due to the bank was satisfied by sale of certain real estate over which it also had security and, accordingly, it released to the plaintiffs, pursuant to their right of subrogation as guarantors, all rights it still held over the property of the company and against the guarantors, this included the plant. 5 It is also appropriate to make clear to the Court that another party which had advanced money to Kenoss, namely, Elders Rural Bank ("the Rural Bank") was at one time asserting that it had rights to the plant superior to those of the plaintiffs. This dispute between the Rural bank was fixed to be heard in the Supreme Court in November 2016 before Lindsay J. The dispute is now settled. Certainly the defendant served notice of the interpleader on the Rural Bank, but that bank did not seek to be joined … and after negotiations between the plaintiffs' solicitor and the Rural Bank solicitor were satisfactorily concluded, the plaintiffs and the Rural Bank reached settlement under which that bank disclaimed and released any right, title and interest and property in and to the plant in favour of the plaintiffs absolutely."
9. The plaintiffs adduced no evidence whatsoever of the loans referred to, namely, by Bank West and the Rural Bank, or any evidence that either bank had released to the plaintiffs, whether pursuant to an asserted right of subrogation as guarantors, or pursuant to Consent Orders of the Supreme Court, any rights held over the property of Kenoss so that the right title and interest and property in the machinery, the subject of these proceedings, vested in the plaintiffs absolutely or otherwise.
10. In the absence of that evidence, and the absence of any evidence of the agreement between the plaintiffs and the receivers dated 2 February 2015 (referred to above), the plaintiffs have failed to establish their right title and interest in the machines, that were the property of Kenoss, and therefore their claim must fail. There will therefore be a verdict for the defendant on the plaintiffs' claim.

Damages for conversion

1. If I am incorrect in the conclusion that I have come to above, it is appropriate that I deal with the plaintiffs' claim for damages. The written outline provided by counsel for the plaintiffs submits that the plaintiffs' damages are for conversion of "the plant", meaning the machines the subject of the proceedings. However, the evidence adduced by the plaintiffs focussed on the 330B Caterpillar excavator, and the hammer and bucket, which apparently could be utilised by it. It was submitted that possession is a necessary element of conversion and that the defendant had acknowledged possession of the plant but had refused to release it to the plaintiffs. It was submitted that the defendant utilised the plant for his own benefit, and that is all that is necessary so as to entitle the plaintiffs to damages. The substance of the plaintiffs' submission was that the Court should reject the defence that the defendant was merely holding the machinery as a bailee. It was submitted that the tort of conversion was one of strict liability for which it was not necessary to establish a mental element.
2. The plaintiffs submitted that the wrongful possession continued until on or about 12 December 2016 (that is of the excavator). It was submitted that the defendant still refuses to deliver or make available for collection, the hammer and bucket.
3. Counsel relied on Chep Australia Pty Limited v Bunnings Group Limited [2010] NSWSC 301 per McDougall J, for the general principle that damages for the tort of conversion are compensatory. The application of the general rule required careful consideration of all the relevant facts and, the plaintiff relied on [226] of his Honour's judgment where his Honour said: "226 The underlying principle appearing from the passage just quoted has been applied many times, in support of the proposition that damages should be assessed robustly against a wrongdoer where the wrong itself has made quantification difficult." His Honour referred, at [242], to the decision of Giles J in Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 where he said: "The normal measure of damages for conversion is the value of the goods converted at the date of conversion, together with consequential, but not too remote, losses flying from the conversion."
4. The plaintiffs also relied on the Court of Appeal's decision in Bunnings Group Pty Limited v Chep Australia Pty Limited [2011] NSWCA 342; (2011) 82 NSWLR 420. In that case, Allsop P (as he then was) referred at [129] to the High Court's decision in Penfolds Wines Pty Limited v Elliott [1946] HCA 46, where Dixon J said at [229]: "The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel. It may take the form of a disposal of the goods by way of sale, or pledge or other intended transfer of an interest followed by delivery, or the destruction or change of the nature or character of the thing, as for example, pouring water into wine, or cutting the seals from a deed, or of an appropriation evidenced by refusal to deliver or other denial of title. But damage to the chattel is not conversion, nor is use, nor is a transfer of possession otherwise than for the purpose of effecting the immediate right to possession, nor is it always conversion to lose the good beyond hope of recovery. An intent to do that which would deprive the 'true owner' of his immediate right to possession or impair it may be said to form the essential ground of the tort."
5. In Bunnings v Chep, supra, Allsop P went on to say at [175] "175 The fundamental principle of damages for tort is compensation for loss caused. The damage or loss caused to the plaintiff with rights of ownership and possession was in the business of hiring goods of the kind converted or detained is not limited to the consequences of stock depletion or to cost or replacement, but includes the denial and infringement of its rights. Those rights have been denied to the plaintiff by the commission of a tort involving the use of the goods by the tort feaser. It is entirely logical and in accordance with justice and common sense, that a wrongdoer should pay a price for using the goods of another as a matter of compensation for the denial of the rights concerned. I did not see this as contrary to, or undermining of, the principle of compensation. To require compensation to be the operative principle is not to deny the fundamental principles discussed in cases (authorities and citations omitted)."
6. Thus, the plaintiff submitted that a broad brush approach should be taken to the calculation of compensatory damages in this matter. The plaintiffs, by their counsel, acknowledged that the defendant may be entitled to a credit for storage in the period from January 2015 until December 2016.
7. The defendant relied on the evidence contained in Ex G to establish that the defendant had "hired out" the excavator to his friend Paul. It was further established that that person must have been Mr Paul Knowles, upon whose property the excavator was photographed and who gave evidence to the effect that it had been stored on his property.
8. The plaintiffs also submitted that the defendant abrogated his obligations as bailee by not keeping the machines safe. It was submitted that the evidence established that to be the case because he left the machinery on other people's property for some months at a time, and did not seek to have it kept safe.
9. The plaintiffs submitted that the evidence of Mr Scensor established that a big excavator was used by Mr Genter to do work on his property, related to repairs to a pool. The inference sought to be drawn is that the excavator used by the defendant was the 330B excavator. It was parked on the property of Mr Scensor for 3 months and was charged by the defendant for its use at $200 per hour. It was submitted that the machine used was the excavator in question because the evidence of Mr Knowles established that the defendant had an excavator, but the biggest one he owned was of 6 tonne capacity.
10. The plaintiffs further submitted that the excavator was on Mr Knowles' property and that he had agreed that earthworks were carried out there by the defendant. Whilst his evidence was that he did not see that work being carried out, an inference may be drawn that the plaintiffs' 330B excavator was used to do that work.
11. The plaintiffs also relied on the photograph published by Grays of the excavator which showed the hours of use at 13,748 (Ex D). At the time Mr Ronzano carried out repairs to the excavator following its release to the plaintiffs, the hours of use had risen to 14,109, an increase of some 360 hours.
12. The plaintiffs submitted that the only logical inference was that the defendant used the excavator for his own business.
13. Based on the authorities outlined above, and a rate of $200 per hour for wet hire, and $110 per hour for dry hire, counsel for the plaintiff submitted that an estimate of the loss to the plaintiffs was "in the vicinity of at least $400,000.00". When asked to articulate the basis for that calculation, counsel submitted that based on a charge of $200 per hour, at 8 hours per day, over one and half years … "it takes little to come to a conclusion that a 70% or 65% use at $200 an hour, that's $1600 a day. In fact it would exceed, in my respectful submission, $400,000.00, but it seems to me that using the rough framework, which the former President recommends, one comes to a reasonable conclusion along those lines".
14. Counsel for the defendant submitted that Mr Scensor identified an excavator on his property, but never identified that excavator as being the 330B machine depicted in the photographs. Counsel referred to Mr Brendas' evidence that he saw the hammer and a bucket on the defendant's property, which had not been returned. It was submitted that the plaintiff had sought not to provide the court with the essential evidence that it was clearly open to them to provide, referring to Ferrcom v Commercial Union Assurance Limited (1991) 22 NSWLR 389.
15. It was submitted that the plaintiffs had failed to adduce the log book to the 330B machine. It was submitted that the plaintiff's claim for damages was purely speculative.

Determination

1. I am satisfied, on the evidence on the balance of probabilities, that as from February 2015, the defendant was on notice that the plaintiffs asserted a right to the two machines, and thereafter, but for the question of ownership referred to above, and decided adversely against the plaintiffs, the defendant converted those machines to his own use until their release on 15 December 2016. The evidence established the essential elements of the tort of conversion were made out, namely, an intentional act by the defendant that was inconsistent with, and repugnant to, the rights of the true owner of the machines.
2. The evidence establishes that a wet hire fee for the 330B excavator was $200 per hour, and a dry hire rate was $110 per hour. I am satisfied that an inference can be drawn that it was the 330B machine that was used by the defendant on Mr Scensor's property, and that that machine was also used for the purpose of excavation on Mr Knowles' property.
3. The evidence, however, is scant as to the extent to which the machinery was used. Further, in December 2016, the plaintiffs obtained possession of them, and subject to repairs, they were capable of their original use. There is no evidence of valuation of the machinery at the time of the conversion, or any diminution in its value. Further, the evidence of use of the excavator by way of the increase in hours by comparison to Ex D with Ex E, namely, to the extent of some 360 hours, could only be a rough guide as to the extent of the conversion involved. It certainly does not support the submission that the machinery was used 8 hours per day over the period February 2015 until December 2016, even at a usage rate of 65%. There was no evidence adduced by the plaintiffs of any use of the compactor machine during the relevant period.
4. I am satisfied that the hammer and bucket have not been released by the defendant, however, again, whilst there was some assertion as to the value of those items, no reliable valuation evidence was adduced by the plaintiffs of their value at the time of the conversion.
5. I am satisfied that a broad brush approach may be taken in assessing damages in accordance with the principles set out in [61] to [63] above. If the wet hire rate of $200 per hour is applied to the increase in hours, to the extent of 360, that would result mathematically in the sum of approximately $72,000.00. That figure may be used as a starting point, to which should be added, something for the value of the hammer and bucket. An allowance should also be made for the defendant's storage fees. Doing the best I can, I would have assessed the plaintiffs' damages in the sum of $100,000.00.

Conclusion and Orders

1. For the reasons set out above, there must be a verdict for the defendant. If I am wrong in the finding, I would have assessed the plaintiffs' damages in the sum of $100,000.00.
2. I make the following orders: 1. Verdict for the defendant. 2. The plaintiffs to pay the defendant's costs of the proceedings. 3. Exhibits to be returned forthwith. 4. Any application for a special costs order is to be made by way of Notice of Motion, together with affidavits in support, to be filed on 5 days' notice.

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